The Nintendo Switch, the latest video game console developed by Nintendo, is a popular choice for both children and adults. The Switch is a “hybrid console” meaning that it can be played at home on the big screen or on the road. It comes with Joy-Con controllers that attach to both sides of the Switch to support handheld gameplay. While the mobility of the Switch is a huge draw for some gamers, there is a class brewing that isn’t too fond of how Nintendo has manufactured, repaired, and replaced their Joy-Con controllers.
“Drift” refers to when the controller movements are registered even when the analog sticks are untouched. This drift, at its best, is inconvenient, and at its worst, is game-breaking. Nintendo has a one-year warranty on their Joy-Con controllers, however, users have turned in their Joy-Con controllers only to have them begin drifting months later and after their warranty has expired. After the one-year warranty is up, Switch owners must purchase new Joy-Con controllers. Nintendo’s store has new Joy-Con controllers listed at $79.99. (This is even more expensive than the average game!) As a result of this headache, on July 19, 2019, Plaintiff Ryan Diaz filed a class action lawsuit against Nintendo in the U.S. District Court for the Western District of Washington at Seattle.
In the complaint, Diaz alleges that Nintendo is aware of the drifting, yet refuses to disclose the defect and won’t find a fix for the Joy-Con controllers. While the litigation was ongoing, Nintendo introduced their new Switch Lite. The Switch Lite has been out for a little more than a week and has already been added to the Joy-Con drift lawsuit. In fact, the allegations are that the Switch Lite analog sticks are even worse than the original Joy-Con ones! The lawsuit alleges that the Switch Lite analog sticks begin drifting after only twenty hours of play.
Nintendo moved the district court to dismiss the class action lawsuit. The Court denied the dismissal of the suit, but granted Nintendo’s request to force the lawsuit into arbitration. Having the case move into arbitration was a win for Nintendo as the Court held Switch users to their agreement under Nintendo’s End Use License Agreement requiring arbitration for disputes. This will allow Nintendo to stay out of the spotlight for a bit, or so they thought. On October 5, 2020, Luz Sanchez and her son, referred to as M.S., filed a class action lawsuit in Northern California against Nintendo alleging Nintendo did not do enough to fix the drifting defect in Joy-Con controllers.
Ms. Sanchez’s complaint alleges “Defendant has had a financial motive to conceal the defect, as it did not want to stop selling the Products, and/or would need to expend a significant amount of money to cure the defect.” While Ms. Sanchez alleges that Nintendo is intentionally failing to fix the defect due to the cost, Nintendo is incurring those costs right back due to the attorneys’ fees they’ve had to pay in response to these lawsuits.